State Ex Rel. N.M. Dry Cleaning Bd. v. Cauthen.

• Decision Date: 13 September 1944
• Docket Number: No. 4817.,4817.
• Citation: 152 P.2d 255,48 N.M. 436
• Parties: STATE ex rel. NEW MEXICO DRY CLEANING BOARDv.CAUTHEN.
• Court: New Mexico Supreme Court

48 N.M. 436

152 P.2d 255

STATE ex rel. NEW MEXICO DRY CLEANING BOARD

v.CAUTHEN.

No. 4817.

Supreme Court of New Mexico.

Sept. 13, 1944.

Appeal from District Court, Otero County; Numa C. Frenger, Judge.

Action by the State, on the relation of the New Mexico Dry Cleaning Board, against Mose Cauthen to enjoin defendant from engaging in the dry cleaning business until he has paid all current and delinquent license fees. Decree for plaintiff, and defendant appeals.

Affirmed.

The fact that Legislature placed on municipal authorities duty and power to regulate pursuits which are dangerous in promoting fires did not deny succeeding Legislature power to make public safety in such respect ground for exercising police power by enacting statute regulating dry cleaning business, if reasonably so moved. 1941 Comp. § 51-2101 et seq.

George A. Shipley, of Alamogordo, for appellant.

Frazier & Quantius, of Roswell, for appellee.

SADLER, Chief Justice.

The appellant was sued as defendant below by the State upon the relation of New Mexico Dry Cleaning Board to enjoin him from engaging in the dry cleaning business unless and until he had complied with the laws of the state regarding such industry, including the payment of all current and delinquent license fees. The complaint disclosed that defendant was delinquent in the payment of the annual license fee of $25 for each of the business years 1941-1942 and 1942-1943, totaling $50, and that the current fee for the business year 1943-1944 would presently accrue on July 1, 1943, only thirty days following filing of the complaint. The plaintiff further alleged defendant's failure and refusal to pay the delinquencies, notwithstanding demands therefor. Injunction was prayed not only under the authority of 1941 Comp. § 51-2110, a section of the act creating the Board, but also upon the ground of the inadequacy and ineffectiveness of any other remedy provided by law.

The defendant answered the complaint, admitting, as alleged, payment of the original registration fee of $25 provided by the act and admitting default in payment of the license fee for each of two years, for doing business without payment of which the injunction against him was sought. For further answer in the nature of a demurrer he challenged sufficiency of the allegations of the complaint to state a cause of action for injunction in that they failed to show the plaintiff would suffer irreparable injury if injunction were not granted or that an adequate legal remedy did not exist. And for still further answer, the defendant challenged on constitutional grounds the validity of L. 1941, c. 198 (1941 Comp. § 51-2101 et seq.) under the authority of which the plaintiff was acting. A reply denying any new matter in the answer put the case at issue and the trial court and counsel apparently treating the pleadings as ripe for judgment, awarded the injunction prayed for. The defendant prosecutes this appeal.

In this court, the defendant assigns three errors which he argues under two points that may be briefly stated as follows: (1) No cause of action for the equitable relief of injunction was alleged; (2) the act creating the plaintiff Board is unconstitutional and void. At the conclusion of the trial consisting solely of the pleadings and the argument of counsel thereon, the court filed its written opinion reading as follows:

“This cause having come on regularly to be heard; and the Court, having heard and considered the arguments of counsel, is of the opinion that Plaintiff should prevail herein. There are no issues of fact present, but the pleadings present matters of law only. The Defendant is engaged in the dry cleaning, pressing and dyeing business in Alamogordo, New Mexico, under the name of Alamo Steam Laundry, and he has failed and refused to pay annual license fees required by the provisions of Section 8, Chapter 198 of New Mexico Session Laws of 1941, for the years 1941-42 and 1942-43 and as due on July 1, 1943, being in the total sum of $75.00. The questions of law presented are as to the validity of said Chapter 198, and as to the right of Plaintiff to enjoin defendant from engaging in his said business by reason of his failure and refusal to pay said license fees. It seems to have been determined by our Supreme Court in the case of State v. Alexander, 46 N.M. 156, 123 P.2d 724, under a declaratory judgment proceeding, that said Act is valid, excepting such parts thereof as have to do with minimum price provisions. The present case has nothing to do with such minimum price provisions. Aside from such determination by our Supreme Court, this Court cannot see wherein said Act is invalid such as to excuse defendant from paying said license fees. In argument it was disclosed that this Court, under date of December 18, 1942, in the case of State of New Mexico ex rel. W. L. Barrowman, Chairman, Daniel H. Taichert, Secretary, M. B. Smith, Member, New Mexico Dry Cleaning Board, Plaintiff, v. O. M. Voyde, Defendant, No. 3813 Otero County, ruled, for the purpose of its judgment therein rendered against Plaintiff, that said chapter 198 was an Act by way of exercise of police power and that Plaintiff could not collect delinquent license fees in a suit at law in absence of provision in the Act authorizing collection in that manner. Such decision and ruling by this Court has never been set aside nor overruled, and the Court at this time sees no reason for receding from its said ruling. The license provisions of said Act are valid and since collection thereof cannot be had by suing therefor, the Court is of the opinion that relief by way of permanent injunction as prayed for by Plaintiff in instant case is appropriate and proper and authorized by the provisions of Section 10 of said Act.”

[1] It thus appears that the learned trial judge rested his decree sustaining plaintiff's right to the injunction sought upon two grounds: (1) Upon the authority of State v. Alexander, 46 N.M. 156, 123 P.2d 724, as having sustained the validity of the questioned Act, L. 1941, c. 198, rendering stare decisis the attacks here made upon it; and (2) upon the ground that, since plaintiff could not maintain an action at law to recover the license fees involved, there was no adequate legal remedy, thereby giving equity jurisdiction to enjoin. As to the first ground, we think counsel for defendant is correct in appraising State v. Alexander, supra, as being stare decisis only to the extent of holding the minimum price provisions of the act invalid for indefiniteness and uncertainty. While it is true, the trial court in that case concluded that with the exception of the provisions held void, the entire act was valid and enforceable and we affirmed its judgment; nevertheless, the record in that case discloses opposing counsel in practical agreement that, save for the minimum price provisions assailed, the act was valid. The trial court, therefore, went no further than the necessities of the case demanded in appraising the validity of the act, nor was it our intention to do more in affirming the declaratory judgment it rendered. We, then, are free here to treat the validity of the act as a matter of first impression uninfluenced by any previous holding except in the respect already indicated.

We shall consider the points argued in reverse order of their presentation by defendant in his brief in chief, since, if the second point which challenges the constitutionality of the act be good, a determination of the first point will be unnecessary. This brings us at once to a consideration of defendant's challenge to the constitutionality of the act bottomed upon the rather broad statement of Point II as follows:

“Chapter 198 of the Laws of 1941, creating the New Mexico Dry Cleaning Board and conferring thereon certain powers and requiring the payment of license fees by those engaged in the dry cleaning business in the State of New Mexico, is unconstitutional and void.”

[2] Before becoming specific in the matter of his attacks on the constitutionality of the act, the defendant presents some observations which question the policy of the legislation assailed. He states:

“This act is the product of an era which we hope and believe has passed, in which many legislatures seem to have felt that the public health, welfare and safety required the setting up of separate boards and commissions for the regulation of almost every conceivable occupation, profession and business.”

The defendant then follows with an admission that there are certain pursuits and certain types of business which so affect public health and safety as to require reasonable regulation. As to them, he admits the right and power of the legislature to enact reasonable regulations in the interest of public health and safety. He denies that the cleaning and dyeing industry is a business of that type. At no point in either his brief in chief or his reply brief does he point to any particular provision of the state or federal constitution which he claims the act violates. He does argue vigorously, however, that it constitutes an unreasonable exercise of the police power under the guise of regulation and, of course, if this be true the act violates the due process clause of the state constitution, Article II, § 18, and a like provision found in the Fourteenth Amendment to the federal constitution.

[3] The question presented thus reduces itself to a consideration whether, with the price fixing provisions of the act eliminated by our decision in State v. Alexander, supra, the defendant has successfully challenged it as representing an unreasonable and unwarranted exercise of the police power. This will be answered by deciding whether, as against the attack here made, it bears any reasonable or valid relation to the public safety, health or morals. For, if it does, our inquiry must end, the policy and wisdom of legislation touching such matters being of purely legislative concern....